NOTE: There are more recent revisions of this legislation. Read Latest Draft Bill Title: Establishes the "earned time act" providing for time allowances against the term or maximum term of sentences imposed by the court to be credited on an annual pro rata basis.
Spectrum: Partisan Bill (Democrat 30-0)
Status: (Introduced) 2024-05-13 - PRINT NUMBER 774A [S00774 Detail]
STATE OF NEW YORK ________________________________________________________________________ 774 2023-2024 Regular Sessions IN SENATE January 6, 2023 ___________ Introduced by Sens. COONEY, BRISPORT, BROUK, CLEARE, COMRIE, GIANARIS, HOYLMAN, JACKSON, MAY, MYRIE, PARKER, RAMOS, RIVERA, SALAZAR, SEPULVE- DA -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction AN ACT to amend the correction law and the penal law, in relation to the early release of incarcerated individuals The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "earned 2 time act". 3 § 2. The correction law is amended by adding a new section 802 to read 4 as follows: 5 § 802. Data collection. The department shall report annually to the 6 governor and the legislature with respect to each instance in which time 7 allowance credit has been withheld, forfeited or cancelled. The report 8 shall provide the following information: the name, department identifi- 9 cation number and race of each incarcerated individual who has been 10 denied credit and the amount of credit involved, the reason or reasons 11 for the denial, including, where applicable, a description of the bad 12 behavior or institutional rule violation or violations (including the 13 corresponding numerical code in the department's inmate rule handbook), 14 and, where applicable, a description of the assigned duty and/or iden- 15 tification of assigned treatment program in which the incarcerated 16 person was determined to have failed to perform properly. The report 17 shall additionally specify the department facility in which the recom- 18 mendation to withhold, forfeit or cancel good time was made and the 19 names of the department personnel on such facility's time allowance 20 committee who made such recommendation. 21 § 3. Section 803 of the correction law, as amended by chapter 3 of the 22 laws of 1995, paragraphs (a), (b), and (c) of subdivision 1 and subdivi- 23 sions 3, 4, and 5 as amended by section 37 of subpart B of part C of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02637-01-3
S. 774 2 1 chapter 62 of the laws of 2011, paragraph (d) of subdivision 1 and 2 subdivision 2-a as added by chapter 738 of the laws of 2004, subpara- 3 graph (ii) of paragraph (d) of subdivision 1 as amended by chapter 322 4 of the laws of 2021, subparagraph (iv) of paragraph (d) of subdivision 1 5 as separately amended by chapters 242 and 322 of the laws of 2021, 6 subdivision 2-b as added by section 3 of part E of chapter 62 of the 7 laws of 2003, is amended to read as follows: 8 § 803. Good behavior allowances against indeterminate and determinate 9 sentences. 1. (a) Every person confined in an institution of the depart- 10 ment or a facility in the department of mental hygiene serving an inde- 11 terminate or determinate sentence of imprisonment, except a person serv- 12 ing a sentence with a maximum term of life imprisonment, [may] shall 13 receive a time allowance against the term or maximum term of [his or14her] their sentence imposed by the court. Such allowances [may be grant-15ed for good behavior and efficient and willing performance of duties16assigned or progress and achievement in an assigned treatment program,17and may be withheld, forfeited or canceled in whole or in part for bad18behavior, violation of institutional rules or failure to perform proper-19ly in the duties or program assigned] shall be credited toward a 20 person's sentence on an annual pro rata basis, and any credit awarded 21 over the course of the calendar year shall vest on the final day of the 22 calendar year. Once vested, such credit shall not be withheld, 23 forfeited, or canceled. 24 (a-1) Time allowances that have not yet been credited toward a 25 person's sentence may be withheld, forfeited or canceled in whole or in 26 part for violation of institutional rules, as demonstrated at a hearing 27 by a preponderance of the evidence. Such restrictions shall be limited 28 to the pro rata share of credit within the calendar year that the 29 offense is committed. If such time allowance is withheld, forfeited or 30 canceled in whole or in part, further allowances, not to exceed the 31 allowances set forth in paragraphs (b) and (c) of this subdivision, may 32 be reinstated for good behavior and efficient and willing performance of 33 duties assigned or progress and achievement in an assigned treatment 34 program. Following any final determination withholding, forfeiting, or 35 canceling a time allowance, the incarcerated person shall have the right 36 to take an administrative appeal to the central office of the department 37 and shall be advised of the right to seek legal assistance in the taking 38 of such appeal. The department shall adopt regulations in accordance 39 with this provision. 40 (b) A person serving an indeterminate sentence of imprisonment [may] 41 shall receive a time allowance against the maximum term of [his or her] 42 their sentence [not to exceed one-third] of one-half of the maximum term 43 imposed by the court. 44 (c) A person serving a determinate sentence of imprisonment [may] 45 shall receive a time allowance against the term of [his or her] their 46 sentence [not to exceed one-seventh] of one-half of the term imposed by 47 the court. 48 (d) (i) [Except as provided in subparagraph (ii) of this paragraph,49every] Every person under the custody of the department or confined in a 50 facility in the department of mental hygiene serving an indeterminate 51 sentence of imprisonment with a minimum period of one year or more or a 52 determinate sentence of imprisonment of one year or more [imposed pursu-53ant to section 70.70 or 70.71 of the penal law,] may earn a merit time 54 allowance. 55 (ii) [Such merit time allowance shall not be available to any person56serving an indeterminate sentence authorized for an A-I felony offense,
S. 774 3 1other than an A-I felony offense defined in article two hundred twenty2of the penal law, or any sentence imposed for a violent felony offense3as defined in section 70.02 of the penal law, manslaughter in the second4degree, vehicular manslaughter in the second degree, vehicular5manslaughter in the first degree, criminally negligent homicide, an6offense defined in article one hundred thirty of the penal law, incest,7or an offense defined in article two hundred sixty-three of the penal8law, or aggravated harassment of an employee by an incarcerated individ-9ual.10(iii)] The merit time allowance credit against the minimum period of 11 the indeterminate sentence shall be [one-sixth] one-half of the minimum 12 period imposed by the court [except that such credit shall be one-third13of the minimum period imposed by the court for an A-I felony offense14defined in article two hundred twenty of the penal law]. In the case of 15 such a determinate sentence, in addition to the time allowance credit 16 authorized by paragraph (c) of this subdivision, the merit time allow- 17 ance credited against the term of the determinate sentence pursuant to 18 this paragraph shall be [one-seventh] one-quarter of the term imposed by 19 the court. 20 [(iv)] (iii) Such merit time allowance [may] shall be granted when an 21 incarcerated individual successfully participates in the work and treat- 22 ment program assigned pursuant to section eight hundred five of this 23 article [and], including but not limited to when such incarcerated indi- 24 vidual obtains a general equivalency diploma, an alcohol and substance 25 abuse treatment certificate, a vocational trade certificate [following26at least six months of vocational programming], at least eighteen cred- 27 its in a program registered by the state education department from a 28 degree-granting higher education institution or performs at least four 29 hundred hours of service as part of a community work crew, or success- 30 fully completes one or more "significant programmatic accomplishments" 31 as defined in paragraph (c) of subdivision one of section eight hundred 32 three-b of this article. The commissioner may designate additional 33 programs and achievements for which merit time shall be granted. Once 34 granted, such allowances shall not be withheld, forfeited, or cancelled. 35 Where the institution in which the incarcerated individual is confined 36 does not provide opportunities for every incarcerated individual to earn 37 merit time allowances, such merit time allowance shall be automatically 38 credited against the incarcerated individual's sentence according to 39 subparagraph (ii) of this paragraph. 40 [Such allowance shall be withheld for any serious disciplinary infrac-41tion or upon a judicial determination that the person, while an incar-42cerated individual, commenced or continued a civil action, proceeding or43claim that was found to be frivolous as defined in subdivision (c) of44section eight thousand three hundred three-a of the civil practice law45and rules, or an order of a federal court pursuant to rule 11 of the46federal rules of civil procedure imposing sanctions in an action47commenced by a person, while an incarcerated individual, against a state48agency, officer or employee.49(v)] (iv) The provisions of this paragraph shall apply to persons in 50 custody serving [an] a determinate or indeterminate sentence on the 51 effective date of this paragraph as well as to persons sentenced to [an] 52 a determinate or indeterminate sentence on and after the effective date 53 of this paragraph [and prior to September first, two thousand five and54to persons sentenced to a determinate sentence prior to September first,55two thousand eleven for a felony as defined in article two hundred twen-56ty or two hundred twenty-one of the penal law]. The time allowances set
S. 774 4 1 forth in this paragraph shall apply retroactively and shall be credited 2 toward every incarcerated individual's sentence within ninety days of 3 the chapter of the laws of two thousand twenty-three that amended this 4 paragraph. 5 2. If a person is serving more than one sentence, the authorized 6 allowances may be granted separately against the term or maximum term of 7 each sentence or, where consecutive sentences are involved, against the 8 aggregate maximum term. Such allowances shall be calculated as follows: 9 (a) A person serving two or more indeterminate sentences which run 10 concurrently [may] shall receive a time allowance [not to exceed one-11third] of one-half of the indeterminate sentence which has the longest 12 unexpired time to run. 13 (b) A person serving two or more indeterminate sentences which run 14 consecutively [may] shall receive a time allowance [not to exceed one-15third] of one-half of the aggregate maximum term. 16 (c) A person serving two or more determinate sentences which run 17 concurrently [may] shall receive a time allowance [not to exceed one-18seventh] of one-half of the determinate sentence which has the longest 19 unexpired time to run. 20 (d) A person serving two or more determinate sentences which run 21 consecutively [may] shall receive a time allowance [not to exceed one-22seventh] of one-half of the aggregate maximum term. 23 (e) A person serving one or more indeterminate sentence and one or 24 more determinate sentence which run concurrently [may] shall receive a 25 time allowance [not to exceed one-third] of one-half of the indetermi- 26 nate sentence which has the longest unexpired term to run or [one-sev-27enth] one-half of the determinate sentence which has the longest unex- 28 pired time to run, whichever allowance is greater. 29 (f) A person serving one or more indeterminate sentence and one or 30 more determinate sentence which run consecutively [may] shall receive a 31 time allowance [not to exceed] of the sum of [one-third] one-half of the 32 maximum or aggregate maximum of the indeterminate sentence or sentences 33 and [one-seventh] one-half of the term or aggregate maximum of the 34 determinate sentence or sentences. 35 2-a. If a person is serving more than one sentence, the authorized 36 merit time allowances may be granted against the period or aggregate 37 minimum period of the indeterminate sentence or sentences, or against 38 the term or aggregate term of the determinate sentence or sentences, or 39 where consecutive determinate and indeterminate sentences are involved, 40 against the aggregate minimum period as calculated pursuant to subpara- 41 graph (iv) of paragraph (a) of subdivision one of section 70.40 of the 42 penal law. Such allowances shall be calculated as follows: 43 (a) A person serving two or more indeterminate sentences which run 44 concurrently may receive a merit time allowance not to exceed [one-45sixth] one-half of the minimum period of the indeterminate sentence 46 imposed [for an offense other than an A-I felony offense defined in47article two hundred twenty of the penal law, or one-third of the minimum48period of the indeterminate sentence imposed for an A-I felony offense49defined in article two hundred twenty of the penal law, whichever allow-50ance results in the longest unexpired time to run] by the court. 51 (b) A person serving two or more indeterminate sentences which run 52 consecutively may receive a merit time allowance not to exceed the 53 amount of [one-third] one-half of the minimum or aggregate minimum peri- 54 od of the sentences imposed [for an A-I felony offense defined in arti-55cle two hundred twenty of the penal law, plus one-sixth of the minimum
S. 774 5 1or aggregate minimum period of the sentences imposed for an offense2other than such A-I felony offense] by the court. 3 (c) A person serving two or more determinate sentences [for an offense4defined in article two hundred twenty or two hundred twenty-one of the5penal law] which run concurrently may receive a merit time allowance not 6 to exceed [one-seventh] one-quarter of the term of the determinate 7 sentence which has the longest unexpired time to run. 8 (d) A person serving two or more determinate sentences [for an offense9defined in article two hundred twenty or two hundred twenty-one of the10penal law] which run consecutively may receive a merit time allowance 11 not to exceed [one-seventh] one-quarter of the aggregate term of such 12 determinate sentences. 13 (e) A person serving one or more indeterminate sentences and one or 14 more determinate sentences [for an offense defined in article two15hundred twenty or two hundred twenty-one of the penal law] which run 16 concurrently may receive a merit time allowance not to exceed [one-17sixth] one-half of the minimum period of the indeterminate sentence 18 imposed [for an offense other than an A-I felony offense defined in19article two hundred twenty of the penal law, one-third of the minimum20period of the indeterminate sentence imposed for an A-I felony offense21defined in article two hundred twenty of the penal law,] or [one-sev-22enth] one-quarter of the term of the determinate sentence, whichever 23 allowance results in the largest unexpired time to run. 24 (f) A person serving one or more indeterminate sentences and one or 25 more determinate sentences which run consecutively may receive a merit 26 time allowance not to exceed the sum of [one-sixth] one-half of the 27 minimum or aggregate minimum period of the indeterminate sentence or 28 sentences imposed [for an offense other than an A-I felony offense29defined in article two hundred twenty of the penal law, one-third of the30minimum or aggregate minimum period of the indeterminate sentence or31sentences imposed for an A-I felony offense defined in article two32hundred twenty of the penal law] and [one-seventh] one-quarter of the 33 term or aggregate term of the determinate sentence or sentences. 34 (g) The provisions of this subdivision shall apply to persons in 35 custody serving [an] a determinate or indeterminate sentence on the 36 effective date of this subdivision as well as to persons sentenced to 37 [an] a determinate or indeterminate sentence on and after the effective 38 date of this subdivision [and prior to September first, two thousand39five and to persons sentenced to a determinate sentence prior to Septem-40ber first, two thousand eleven for a felony as defined in article two41hundred twenty or two hundred twenty-one of the penal law]. The merit 42 time allowances set forth in this subdivision shall apply retroactively, 43 and shall be credited toward every incarcerated individual's sentence 44 within ninety days of the effective date of the chapter of the laws of 45 two thousand twenty-three that amended this subdivision. 46 [2-b. Notwithstanding the foregoing, if a person is serving more than47one indeterminate sentence, at least one of which is imposed for a class48A-I felony offense defined in article two hundred twenty of the penal49law, the authorized merit time allowance granted pursuant to paragraph50(d) of subdivision one of this section shall be calculated as follows:51(a) In the event a person is serving two or more indeterminate52sentences with different minimum periods which run concurrently, the53merit time allowance shall be based upon the sentence with the longest54unexpired minimum period. If the sentence with the longest unexpired55minimum period was imposed for a class A-I felony, the merit time credit56shall be one-third of such sentence's minimum period; if such sentence
S. 774 6 1was imposed for an offense other than a class A-I felony, such merit2time credit shall be one-sixth of such sentence's minimum period.3Provided, however, that where the minimum period of any other concurrent4indeterminate sentence is greater than such reduced minimum period, the5minimum period of such other concurrent indeterminate sentence shall6also be reduced but only to the extent that the minimum period of such7other concurrent sentence, as so reduced, is equal to the reduced mini-8mum period of such sentence with the longest unexpired minimum period to9run.10(b) A person serving two or more indeterminate sentences with the same11minimum periods which run concurrently, and no concurrent indeterminate12sentence with any greater minimum period, shall have the minimum period13of each such sentence reduced in the amount of one-third of such minimum14period if all such sentences were imposed for a class A-I felony.15(c) A person serving two or more indeterminate sentences that run16consecutively shall have the aggregate minimum period of such sentences17reduced in the amount of one-third of such aggregate minimum period of18the sentences imposed for a class A-I felony, plus one-sixth of such19aggregate minimum period of the sentences imposed for an offense other20than a class A-I felony.] 21 3. The commissioner of corrections and community supervision shall 22 promulgate rules and regulations for the fair and equitable granting, 23 withholding, forfeiture, cancellation and restoration of allowances 24 authorized by this section in accordance with the criteria herein speci- 25 fied. Such rules and regulations shall specify procedures to ensure that 26 similarly situated incarcerated persons are treated similarly with 27 respect to the granting, withholding, forfeiture or cancellation of 28 allowances, and include provisions designating the person or committee 29 in each correctional institution delegated to make discretionary deter- 30 minations with respect to the allowances, the books and records to be 31 kept, and a procedure for review of the institutional determinations by 32 the commissioner. 33 4. [No person shall have the right to demand or require the allowances34authorized by this section. The decision of the commissioner of35corrections and community supervision as to the granting, withholding,36forfeiture, cancellation or restoration of such allowances shall be37final and shall not be reviewable if made in accordance with law.385.] Time allowances granted prior to any release to community super- 39 vision shall be forfeited and shall not be restored if the released 40 person is returned to an institution under the jurisdiction of the state 41 department of corrections and community supervision for violation of 42 community supervision or by reason of a conviction for a crime committed 43 while on community supervision. A person who is so returned may, howev- 44 er, subsequently receive time allowances against the remaining portion 45 of [his or her] their term, maximum term or aggregate maximum term 46 pursuant to this section [and provided such remaining portion of his or47her term, maximum term, or aggregate maximum term is more than one48year]. 49 [6.] 5. Upon commencement of an indeterminate or a determinate 50 sentence the provisions of this section shall be furnished to the person 51 serving the sentence and the meaning of same shall be fully explained to 52 [him] them by a person designated by the commissioner to perform such 53 duty. 54 § 4. Section 804 of the correction law, as added by chapter 680 of the 55 laws of 1967, subdivisions 1 and 2 as amended by chapter 145 of the laws
S. 774 7 1 of 1976, and subdivision 6 as amended by section 39 of subpart B of part 2 C of chapter 62 of the laws of 2011, is amended to read as follows: 3 § 804. Good behavior allowances against definite sentences. 1. Every 4 person confined in an institution serving a definite sentence of impri- 5 sonment [may] shall receive a time [allowances as discretionary6reductions of the term of his sentence not to exceed in the aggregate7one-third] allowance of one-half of the term imposed by the court. Such 8 allowances [may be granted for good behavior and efficient and willing9performance of duties assigned or progress and achievement in an10assigned treatment program, and may be withheld, forfeited or cancelled11in whole or in part for bad behavior, violation of institutional rules12or failure to perform properly in the duties or program assigned] shall 13 be credited toward a person's sentence on an annual pro rata basis, and 14 any credit awarded over the course of the calendar year shall vest on 15 the final day of the calendar year. Once vested, such credit shall not 16 be withheld, forfeited, or canceled. 17 1-a. Time allowances that have not yet been granted toward a person's 18 sentence may be withheld, forfeited or canceled in whole or in part for 19 violation of institutional rules, as demonstrated at a hearing by a 20 preponderance of the evidence. Such restrictions shall be limited to the 21 pro rata share of credit within the calendar year that the offense is 22 committed. If such time allowance is withheld, forfeited or canceled in 23 whole or in part, further allowances, not to exceed one-half of the term 24 imposed by the court, may be reinstated for good behavior and efficient 25 and willing performance of duties assigned or progress and achievement 26 in an assigned treatment program. Following any final determination 27 withholding, forfeiting, or canceling a time allowance, the incarcerated 28 person shall have the right to take an administrative appeal to the 29 sheriff and shall be advised of the right to seek legal assistance in 30 the taking of such appeal. The sheriff shall adopt regulations in 31 accordance with this provision. 32 2. If a person is serving more than one sentence, the authorized 33 allowances may be granted separately against the term of each sentence 34 or, where consecutive sentences are involved, against the aggregate 35 term. Allowances based upon sentences of less than one month may be 36 granted, and in such case the maximum allowance shall be one day for 37 every [three] two days of the sentence. In no case, however, shall the 38 total of all allowances granted to any such person exceed [one-third] 39 one-half of the time [he] they would be required to serve, computed 40 without regard to this section. 41 3. [No person shall have the right to demand or require the allowances42authorized by this section. The decision of the sheriff, superintendent,43warden or other person in charge of the institution, or where such44institution is under the jurisdiction of a county or city department the45decision of the head of such department, as to the granting, withhold-46ing, forfeiture, cancellation or restoration of such allowances shall be47final and shall not be reviewable if made in accordance with law.484.] A person who has earned a reduction of sentence pursuant to this 49 section and who has been conditionally released under subdivision two of 50 section 70.40 of the penal law shall not forfeit such reduction by 51 reason of conduct causing [his] their return to the institution. 52 Provided, nevertheless, that such reduction may be forfeited by reason 53 of subsequent conduct while serving the remainder of [his] their term. 54 [5.] 4. The state commission of correction shall promulgate record 55 keeping rules and regulations for the fair and equitable granting, with- 56 holding, forfeiture, cancellation and restoration of allowances author-
S. 774 8 1 ized by this section. Such rules and regulations shall specify proce- 2 dures to ensure that similarly situated incarcerated persons are treated 3 similarly with respect to the granting, withholding, forfeiture or 4 cancellation of allowances. 5 [6.] 5. Notwithstanding anything to the contrary in this section, in 6 any case where a person is serving a definite sentence in an institution 7 under the jurisdiction of the state department of corrections and commu- 8 nity supervision, [subdivisions] subdivision three [and four] of section 9 eight hundred three of this [chapter] article shall apply. 10 [7.] 6. Upon commencement of any definite sentence the provisions of 11 this section shall be furnished to the person serving the sentence and 12 the meaning of same shall be fully explained to [him] them by an officer 13 designated in the regulation to perform such duty. 14 § 5. Section 804-a of the correction law, as added by chapter 220 of 15 the laws of 1987, is amended to read as follows: 16 § 804-a. Good behavior allowances for certain civil commitments. 1. 17 Every person confined in an institution serving a civil commitment for a 18 fixed period of time, whose release is not conditional upon any act 19 within [his] their power to perform, [may] shall receive time allowances 20 as discretionary reductions of the term of [his] their commitment not to 21 exceed, in the aggregate, [one-third] one-half of the term imposed by 22 the court. Such allowances [may be granted for good behavior and effi-23cient and willing performance of duties assigned or progress and24achievement in an assigned treatment program, and may be withheld,25forfeited or cancelled in whole or in part for bad behavior, violation26of institutional rules or failure to perform properly in the duties or27program assigned] shall be credited toward a person's sentence on an 28 annual pro rata basis, and any credit awarded over the course of the 29 calendar year shall vest on the final day of the calendar year. Once 30 vested, such credit shall not be withheld, forfeited, or canceled. 31 1-a. Time allowances that have not yet been granted toward a person's 32 sentence may be withheld, forfeited or canceled in whole or in part for 33 violation of institutional rules, as demonstrated at a hearing by a 34 preponderance of the evidence. Such restrictions shall be limited to the 35 pro rata share of credit within the calendar year that the offense is 36 committed. If such time allowance is withheld, forfeited or canceled in 37 whole or in part, further allowances, not to exceed one-half of the term 38 imposed by the court, may be reinstated for good behavior and efficient 39 and willing performance of duties assigned or progress and achievement 40 in an assigned treatment program. Following any final determination 41 withholding, forfeiting, or canceling a time allowance, the incarcerated 42 person shall have the right to take an administrative appeal to the 43 central office of the department and shall be advised of the right to 44 seek legal assistance in the taking of such appeal. The department shall 45 adopt regulations in accordance with this provision. 46 2. Allowances based upon commitments of less than one month may be 47 granted, and in such case the maximum allowances shall be one day for 48 every [three] two days of the commitment. In no case, however, shall the 49 total of all allowances granted to any such person exceed [one-third] 50 one-half of the time [he] they would be required to serve, computed 51 without regard to this section. 52 3. [No person shall have the right to demand or require the allowances53authorized by this section. The decision of the sheriff, superintendent,54warden or other person in charge of the institution, or where such55institution is under the jurisdiction of a county or city department the56decision of the head of such department, as to the granting, withhold-
S. 774 9 1ing, forfeiture, cancellation, or restoration of such allowances shall2be final and shall not be reviewable if made in accordance with law.34.] The state commission of correction shall promulgate record keeping 4 rules and regulations for the granting, withholding, forfeiture, cancel- 5 lation and restoration of allowances authorized by this section. 6 [5.] 4. Upon commencement of any civil commitment as described in 7 subdivision one of this section, the provisions of this section shall be 8 furnished to the person serving the commitment and the meaning of same 9 shall be fully explained to [him] them by an officer designated in the 10 regulation to perform such duty. 11 § 6. Section 865 of the correction law, as added by chapter 261 of the 12 laws of 1987, subdivisions 1 and 2 as amended by chapter 322 of the laws 13 of 2021, is amended to read as follows: 14 § 865. Definitions. As used in this article, [the following terms15mean:161. "Eligible incarcerated individual" means a person sentenced to an17indeterminate term of imprisonment who will become eligible for release18on parole within three years or sentenced to a determinate term of19imprisonment who will become eligible for conditional release within20three years, who has not reached the age of fifty years, who has not21previously been convicted of a violent felony as defined in article22seventy of the penal law, or a felony in any other jurisdiction which23includes all of the essential elements of any such violent felony, upon24which an indeterminate or determinate term of imprisonment was imposed25and who was between the ages of sixteen and fifty years at the time of26commission of the crime upon which his or her present sentence was27based. Notwithstanding the foregoing, no person who is convicted of any28of the following crimes shall be deemed eligible to participate in this29program: (a) a violent felony offense as defined in article seventy of30the penal law; provided, however, that a person who is convicted of31burglary in the second degree as defined in subdivision two of section32140.25 of the penal law, or robbery in the second degree as defined in33subdivision one of section 160.10 of the penal law, or an attempt there-34of, is eligible to participate, (b) an A-I felony offense, (c) any homi-35cide offense as defined in article one hundred twenty-five of the penal36law, (d) any felony sex offense as defined in article one hundred thirty37of the penal law and (e) any escape or absconding offense as defined in38article two hundred five of the penal law.392. "Shock] "shock incarceration program" means a program pursuant to 40 which eligible incarcerated individuals are selected to participate in 41 the program and serve a period of six months in a shock incarceration 42 facility, which shall provide rigorous physical activity, intensive 43 regimentation and discipline and rehabilitation therapy and programming. 44 Such incarcerated individuals may be selected either: (i) at a reception 45 center; or (ii) at a general confinement facility [when the otherwise46eligible incarcerated individual then becomes eligible for release on47parole within three years in the case of an indeterminate term of impri-48sonment, or then becomes eligible for conditional release within three49years in the case of a determinate term of imprisonment]. 50 § 7. Section 867 of the correction law, as amended by chapter 322 of 51 the laws of 2021, is amended to read as follows: 52 § 867. Procedure for selection of participants in shock incarceration 53 program. 1. An [eligible] incarcerated individual may make an applica- 54 tion to the shock incarceration screening committee for permission to 55 participate in the shock incarceration program.
S. 774 10 1 2. If the shock incarceration screening committee determines that an 2 incarcerated individual's participation in the shock incarceration 3 program is consistent with the safety of the community, the welfare of 4 the applicant and the rules and regulations of the department, the 5 committee shall forward the application to the commissioner or [his] a 6 designee for approval or disapproval. 7 2-a. Subdivisions one and two of this section shall apply to a judi- 8 cially sentenced shock incarceration incarcerated individual only to the 9 extent that the screening committee may determine whether the incarcer- 10 ated individual has a medical or mental health condition that will 11 render the incarcerated individual unable to successfully complete the 12 shock incarceration program, and the facility in which the incarcerated 13 individual will participate in such program. Notwithstanding subdivi- 14 sion five of this section, an incarcerated individual sentenced to shock 15 incarceration shall promptly commence participation in the program [when16such incarcerated individual is an eligible incarcerated individual17pursuant to subdivision one of section eight hundred sixty-five of this18article]. 19 3. Applicants cannot participate in the shock incarceration program 20 unless they agree to be bound by all the terms and conditions thereof 21 and indicate such agreement by signing the memorandum of the program 22 immediately below a statement reading as follows: 23 "I accept the foregoing program and agree to be bound by the terms and 24 conditions thereof. I understand that my participation in the program is 25 a privilege that may be revoked at any time at the sole discretion of 26 the commissioner. I understand that I must successfully complete the 27 entire program to obtain a certificate of earned eligibility upon the 28 completion of said program, and in the event that I do not successfully 29 complete said program, for any reason, I will be transferred to a 30 nonshock incarceration correctional facility to continue service of my 31 sentence." 32 4. An incarcerated individual who has successfully completed a shock 33 incarceration program shall be eligible to receive such a certificate of 34 earned eligibility pursuant to section eight hundred five of this chap- 35 ter. Notwithstanding any other provision of law, an incarcerated indi- 36 vidual sentenced to a determinate sentence of imprisonment who has 37 successfully completed a shock incarceration program shall be eligible 38 to receive such a certificate of earned eligibility and shall be imme- 39 diately eligible to be conditionally released. 40 5. Participation in the shock incarceration program shall be a privi- 41 lege. Nothing contained in this article may be construed to confer upon 42 any incarcerated individual the right to participate or continue to 43 participate therein. 44 § 8. Clause (B) of subparagraph (ii) of paragraph (e) of subdivision 1 45 of section 70.30 of the penal law, as amended by chapter 3 of the laws 46 of 1995, is amended to read as follows: 47 (B) if the aggregate maximum term of the determinate sentence or 48 sentences is less than twenty years, the defendant shall be deemed to be 49 serving an indeterminate sentence the maximum term of which shall be 50 deemed to be twenty years. In such instances, the minimum sentence shall 51 be deemed to be ten years or [six-sevenths] one-half of the term or 52 aggregate maximum term of the determinate sentence or sentences, which- 53 ever is greater. 54 § 9. Clause (B) of subparagraph (iii) of paragraph (e) of subdivision 55 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws 56 of 1995, is amended to read as follows:
S. 774 11 1 (B) if the aggregate maximum term of the determinate sentence or 2 sentences is less than thirty years, the defendant shall be deemed to be 3 serving an indeterminate sentence the maximum term of which shall be 4 deemed to be thirty years. In such instances, the minimum sentence shall 5 be deemed to be fifteen years or [six-sevenths] one-half of the term or 6 aggregate maximum term of the determinate sentence or sentences, which- 7 ever is greater. 8 § 10. Clause (B) of subparagraph (v) of paragraph (e) of subdivision 1 9 of section 70.30 of the penal law, as amended by chapter 3 of the laws 10 of 1995, is amended to read as follows: 11 (B) if the aggregate maximum term of the determinate sentence or 12 sentences is less than forty years, the defendant shall be deemed to be 13 serving an indeterminate sentence the maximum term of which shall be 14 deemed to be forty years. In such instances, the minimum sentence shall 15 be deemed to be twenty years or [six-sevenths] one-half of the term or 16 aggregate maximum term of the determinate sentence or sentences, which- 17 ever is greater. 18 § 11. Clause (B) of subparagraph (vii) of paragraph (e) of subdivision 19 1 of section 70.30 of the penal law, as amended by chapter 3 of the laws 20 of 1995, is amended to read as follows: 21 (B) if the aggregate maximum term of the determinate sentence or 22 sentences is less than fifty years, the defendant shall be deemed to be 23 serving an indeterminate sentence the maximum term of which shall be 24 deemed to be fifty years. In such instances, the minimum sentence shall 25 be deemed to be twenty-five years or [six-sevenths] one-half of the term 26 or aggregate maximum term of the determinate sentence or sentences, 27 whichever is greater. 28 § 12. Paragraph (b) of subdivision 4 of section 70.30 of the penal 29 law, as amended by chapter 3 of the laws of 1995, is amended to read as 30 follows: 31 (b) In the case of a person serving a definite sentence, the total of 32 such allowances shall not exceed [one-third] one-half of [his] their 33 term or aggregate term and the allowances shall be applied as a credit 34 against such term. 35 § 13. Subparagraphs (iii) and (iv) of paragraph (a) of subdivision 1 36 of section 70.40 of the penal law, as amended by section 127-c of 37 subpart B of part C of chapter 62 of the laws of 2011, are amended to 38 read as follows: 39 (iii) A person who is serving one or more than one indeterminate 40 sentence of imprisonment and one or more than one determinate sentence 41 of imprisonment, which run concurrently may be paroled at any time after 42 the expiration of the minimum period of imprisonment of the indetermi- 43 nate sentence or sentences, or upon the expiration of [six-sevenths] 44 one-half of the term of imprisonment of the determinate sentence or 45 sentences, whichever is later. 46 (iv) A person who is serving one or more than one indeterminate 47 sentence of imprisonment and one or more than one determinate sentence 48 of imprisonment which run consecutively may be paroled at any time after 49 the expiration of the sum of the minimum or aggregate minimum period of 50 the indeterminate sentence or sentences and [six-sevenths] one-half of 51 the term or aggregate term of imprisonment of the determinate sentence 52 or sentences. 53 § 14. Paragraph (b) of subdivision 1 of section 70.40 of the penal 54 law, as amended by section 127-d-1 of subpart B of part C of chapter 62 55 of the laws of 2011, is amended to read as follows:
S. 774 12 1 (b) A person who is serving one or more than one indeterminate or 2 determinate sentence of imprisonment shall, if [he or she so requests] 3 they request, be conditionally released from the institution in which 4 [he or she is] they are confined when the total good behavior time 5 allowed to [him or her] them, pursuant to the provisions of the 6 correction law, is equal to the unserved portion of [his or her] their 7 term, maximum term or aggregate maximum term; provided, however, that 8 (i) in no event shall a person serving one or more indeterminate 9 sentence of imprisonment and one or more determinate sentence of impri- 10 sonment which run concurrently be conditionally released until serving 11 at least [six-sevenths] one-half of the determinate term of imprisonment 12 which has the longest unexpired time to run and (ii) in no event shall a 13 person be conditionally released prior to the date on which such person 14 is first eligible for discretionary parole release. The conditions of 15 release, including those governing post-release supervision, shall be 16 such as may be imposed by the state board of parole in accordance with 17 the provisions of the executive law. 18 Every person so released shall be under the supervision of the state 19 department of corrections and community supervision for a period equal 20 to the unserved portion of the term, maximum term, aggregate maximum 21 term, or period of post-release supervision. 22 § 15. This act shall take effect immediately; provided, however, that 23 the amendments to section 803 of the correction law made by section 24 three of this act shall not affect the expiration of such section and 25 shall be deemed to expire therewith; provided, further that the amend- 26 ments to subdivision 2-b of section 803 of the correction law made by 27 section three of this act shall not affect the repeal of such subdivi- 28 sion and shall be deemed repealed therewith; provided further, however, 29 that the amendments to paragraph (e) of subdivision 1 and paragraph (b) 30 of subdivision four of section 70.30 of the penal law made by sections 31 eight, nine, ten, eleven, and twelve of this act shall not affect the 32 expiration of such paragraphs and shall be deemed to expire therewith; 33 and provided further, however, that the amendments to paragraphs (a) and 34 (b) of subdivision 1 of section 70.40 of the penal law made by sections 35 thirteen and fourteen of this act shall not affect the expiration of 36 such paragraphs and shall be deemed to expire therewith.